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Planning for "Non-traditional" Couples

A "non-traditional" couple are two individuals in a committed relationship who either cannot, or will not, be married. Whether the couple are the same gender or opposite gender, the law treats such couples as "strangers". While a growing number of states have either legalized same gender marriages or provide for civil unions, the law in most states and under the federal Defense of Marriage Act ("DOMA") do not recognize the legality of such marriages. Couples who are voluntarily unmarried are faced with the same legal impediments to being treated as more than just strangers. For brevity I will refer to the individual members in committed relationship as "partners".

Some of the areas where the non-traditional couples are treated as strangers include:
  • Burial determinations
  • Medical decisions regarding treatment
  • Hospital visitation
  • Presumption to be appointed as guardian or conservator
  • Child custody, support and visitation
  • Attorney client privilege
  • Property division when a relationship terminates
  • Inheritance
Among the large number of federal benefits unavailable to non-traditional couples include:
  • Social Security and related programs
  • Veteran's benefits
  • Income taxation
  • Federal civilian and military service benefits
  • Employment benefits and related laws
  • Immigration and naturalization
  • Financial disclosure and conflict of interests
  • Estate and gift taxation
In the estate planning context, state laws do not provide benefits for the surviving member of the couple at the time of the death of the first to die. Death without a will or other estate plan will place the deceased partners assets through intestate administration where state law dictates who is eligible to inherit. While a surviving spouse has extraordinary protection, a surviving partner is treated as simply a stranger without any rights.

It is imperative that the couple take prompt action to define their relationship, rights and obligations. Domestic partnership agreements can address many of the issues that state law ignores. Wills and trusts can specify the rights of the survivor. Powers of Attorney and Health Care Declarations can simplify making medical decisions and address visitation. Careful attention to how property is titled and making appropriate beneficiary designations can address inheritance rights for real property, life insurance and retirement plan benefits.

Personal agreements, however, do not address the tax issues or the rights to be treated as a surviving spouse for social security and other governmental benefits. Until there is a change in the law, couples will have to work around these issues and, most importantly, understand the impact of decisions regarding purchasing and sale of property.

It is essential that couples engage an attorney who is well versed in the legal limitations and how best to avoid the worst consequences.